New York Law

NEW YORK’S SEXUAL HARASSMENT LAWWHAT EVERY EMPLOYER (NO MATTER HOW SMALL) MUST KNOW AND ADHERE TO IN THE WORKPLACE

All employers must provide employees with the following:

Written sexual harassment prevention policy, and

Annual sexual harassment prevention training.

COMPLYING WITH THE NEW LAW

THE LAW REQUIRES

Both New York State and New York City have recently enacted laws intended to protect employees from sexual harassment in the work place. New York City employers must keep in mind that they are required to comply with both state and city laws.

Sexual Harassment PolicySince September 6, 2018, New York City employers are required to display a poster in English and Spanish (designed by the New York City Commission on Human Rights), about anti-sexual harassment rights and responsibilities. Also New York City employers are required to distribute a fact sheet about sexual harassment (created by the Commission) to their existing employees and to all new employees upon hire, or they may include the fact sheet in their employee handbooks.

Since October 9, 2018, every employer in New York State must have a written sexual harassment prevention policy in place and distribute it to its employees.

Employers can use a model policy created by the New York State Department of Labor and the New York State Division of Human Rights, or they can create their own policy provided that it equals or exceeds the minimum standards set forth in the model policy. At a minimum, the policy must:

include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available and a statement that there may be applicable local laws;

include a standard complaint form;

include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;

inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;

clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and

clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.

Employers remain able to include much more in their policies, as many commonly do, such as a warning that false and malicious accusations may result in disciplinary action, a statement that investigations will be handled as confidentially as possible, and that participating in an investigation and reporting sexual harassment are also protected from retaliation. Additionally, employers often include policies about fraternization and employee dating with sexual harassment policies.

Mandatory Sexual Harassment Training

By October 9, 2019, every employer (regardless of size) is required to provide interactive sexual harassment prevention training to all employees located in New York State on an annual basis. Employers can either use the model sexual harassment prevention training program created by the New York State Department of Labor and the New York State Division of Human Rights or establish their own training program that equals or exceeds the minimum standards provided by the model. In either case, the training is required to be interactive.

Beginning in January 2019, all companies that bid on contracts with the New York State government must submit an affirmation that they have a sexual harassment policy in place and have provided sexual harassment training to all employees, even those not located in New York State.

Similarly, the New York City law, “Stop Sexual Harassment in NYC Act,” provides that beginning April 1, 2019, all New York City employers (with 15 or more employees) must provide interactive sexual harassment prevention training to all full and part-time employees and interns annually, and to new employees within 90 days of hire.

Both New York State and New York City laws detail specific content that must be addressed in the training. New York City’s law goes beyond the training content required by the state law. For example, the training provided to employees in New York City must:

Address bystander intervention

Describe the complaint process available through the New York City Commission on Human Rights, the New York State Division of Human Rights, and the United States Equal Employment Opportunity Commission, and provide employees with those agencies’ contact information

The two tables below detail the obligations and the differences between the New York State and New York City laws regarding:

Training Requirements (Table 1)

Training Content (Table 2)

Table 1

Sexual Harassment Training Obligations in New York State

New York State

New York City

Effective Date and Deadline

Effective October 9, 2018. Deadline of October 9, 2019 to have all employees trained.

If employees have already received sexual harassment training this year, but it did NOT meet all new requirements of New York State’s sexual harassment training guidance, employers must provide supplemental training addressing uncovered topics to ensure all requirements are met.

Effective April 1, 2019. Deadline of April 1, 2020, to have all employees trained.

Employers and Employees Covered

All employers, regardless of size, must train all employees.

According to the final guidance issued by New York State, an “employee” includes all workers, regardless of immigration status. “Employee” also includes part-time workers, seasonal workers and temporary workers.

Minor employees, such as child actors, are required to take sexual harassment training. However, those employing children under the age of 14 may opt to simplify the training and policy, while still meeting the minimum requirements.

Only employees who work or will work in New York State need to be trained. However, if an individual works a portion of their time in New York State, even if they’re based in another state, they must be trained.

An agency or any other worker organization (e.g. labor union) may choose to provide training to workers; however, the employer may still be liable for the employee’s conduct and understanding of policies and should train the employee on any nuances and processes specific to the company or industry.

Employers with 15 or more employees must train all employees, who work 90 or more hours per the calendar year, on a full or part-time basis in New York City.

Contractors Covered

Beginning on January 1, 2019, all contractors who bid on contracts to provide goods or services to the New York State government or any state agency, where competitive bidding is required, must certify under penalty of perjury that they have a sexual harassment policy and that they provide annual sexual harassment training to all employees, even those outside of the state. Specifically, the bid must include the following language: “By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that the bidder has and has implemented a written policy addressing sexual harassment prevention in the workplace and provides annual sexual harassment prevention training to all of its employees.” (State Finance Law, Section 139-L).

The New York State Human Rights Law imposes liability on employers for the actions of independent contractors, vendors, or consultants; thus, employers are also encouraged to provide their policy and training to anyone providing services in the workplace, in addition to employees.

While the law doesn’t explicitly require New York City contractors to provide sexual harassment training, they will be required to describe their practices, policies, and procedures “relating to preventing and addressing sexual harassment” as part of existing reporting requirements.

How Often

Employers must provide each employee the training at least once per year. Employers can track completion based on the calendar year, the anniversary of each employee’s start date, or any other date the employer chooses.

Must provide training annually.

New Employees

The New York State final guidance encourages training of new employees as soon as possible, noting that employers may be liable for the actions of employees immediately upon hire.

The law requires that employers provide a sexual harassment prevention policy and training on an annual basis to all employees. An employer may choose to deem the training requirement satisfied if a new employee can verify completion through a previous employer or through a temporary help firm.

New employees who work 80 or more hours per year, on a full or part-time basis, in New York City must be trained after 90 days of hire – unless the employee received training within the same annual cycle from a prior employer.

Record Keeping

Employers are not required to (but are encouraged) to keep a signed employee acknowledgment of having read the policy and a copy of all training records, as these records may be helpful in addressing future complaints or lawsuits.

Employers shall keep a record of all training, including a signed employee acknowledgment, which may be electronic. Employers shall maintain such records for at least three years and such records must be made available for commission inspection upon request.

Interactivity

Training may be in-person or online, so long as it is “interactive”. Interactivity requires employee participation. Examples of employee participation include:

If the training is web-based, and the employee must select the right answer when asked questions at the end.

If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner.

In an in-person or live training, the presenter asks the employees questions or gives them time to ask questions.

Web-based or in-person training that provides a Feedback Survey for employees to turn in after they have completed the training.

An individual watching a training video or reading a document only, with no feedback mechanism or interaction, would NOT be considered interactive.

The training must be “interactive,” which is defined as “participatory.” Online training may suffice if it is interactive.

Table 2

Harassment Training Content Requirements in New York State and New York City

New York State

New York City

Sexual Harassment Definition and Examples

An explanation of sexual harassment consistent with guidance issued by the New York DOL, including examples of conduct that would constitute unlawful sexual harassment.

A description of what sexual harassment is, using examples.

Applicable Laws

Information containing the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment, and a statement that there may be applicable local laws.

An explanation of sexual harassment as a form of unlawful discrimination under local law. A statement that sexual harassment is also a form of unlawful discrimination under state and federal law.

Reporting, External Forums of Adjudication, and Rights of Redress

Information concerning employees’ rights of redress and all available forums for adjudicating complaints.

The training must inform employees of the internal complaint process available to employees through their employer to address sexual harassment claims. It also must describe the complaint process available through the New York City Commission on Human Rights, the New York State Division of Human Rights, and the United States Equal Employment Opportunity Commission, including contact information.

Retaliation

Training on retaliation is not specifically required by New York State law, but the law also notes that anti-retaliation provisions must be included in the employer’s policy. New York’s Human Rights Law prohibits retaliation for employees who file an internal or external complaint, testify, or assist in any investigation.

The prohibition of retaliation, pursuant to subdivision 7 of section 8-107, and examples of protected activity under the law (such as opposing discrimination, filing a complaint, testifying on behalf of someone complaining about discrimination, and assisting in an investigation).

Bystander Intervention

No requirement to address bystander intervention.

Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention.

Supervisors’ Duties

According to the New York State guidance, employers must ensure managers and supervisors, as well as all employees, are aware of the extra requirements and responsibilities for those in managerial/supervisory roles. While employers may provide additional or separate training to supervisors and managers, this language indicates that employers should inform all employees of supervisors’ and managers’ responsibilities for preventing and reporting sexual harassment.

The specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints.

New York State has created a video of someone reading through the training slides and sample scenarios posted online, however, the State specifically cautions that simply showing the training video to an employee will not satisfy the law’s minimum training requirements, as this would not be considered “interactive.” If an employer chooses to use the video to meet its training requirements, it must also:

Ask questions of employees as part of the program;

Accommodate questions asked by employees, with answers provided in a timely manner; or

Require feedback from employees about the training and the materials presented.

According to New York State, during the interactive portion of the training, “employers should be prepared to address questions raised by employees including those specific to their industry, questions about the organization’s reporting process, and questions about how hypothetical cases would be handled.”An employer who provides the training with an unqualified facilitator runs the risk of providing non-compliant training and having the facilitator give inaccurate guidance.

Limitation on Nondisclosure Agreements

Since July 11, 2018, in New York State, agreements settling claims of sexual harassment cannot include non-disclosure provisions unless the condition of confidentiality is the employee’s preference.

Employees also must be given 21 days to consider any settlement agreement and to decide whether they prefer that it contain a non-disclosure provision, and then given 7 days to revoke the agreement.

Limitation on inclusion of Arbitration Provisions

Since July 11, 2018, in New York State, most new employment contracts cannot require employees to submit to mandatory arbitration to resolve any allegation or claim of sexual harassment, unless the arbitration agreement is part of a collective bargaining agreement.

Independent Contractors and Others Protected

The state legislation prohibits sexual harassment of non-employees in the workplace. The term “non-employee” includes contractors, subcontractors, vendors, consultants or other persons providing services pursuant to a contract in the workplace—or an employee of any of these. Employers will be liable when the employer (including its agents and supervisors) knew or should have known that the non-employee was subjected to sexual harassment in the employer’s workplace, and the employer failed to take immediate and appropriate corrective action. This section took effect in April of 2018.

Given this, employers should ensure that their training addresses the prevention and reporting of harassment of such non-employees. In addition, employers would be wise to offer their harassment prevention training to non-employees, especially contractors, subcontractors, and consultants regularly performing services in the employer’s workplace.

New York City Posting Requirements

The New York City Commission on Human Rights has created a poster and information “fact sheet.” Since of September 9, 2018, all employers in New York City are required to post an anti-sexual harassment rights and responsibilities poster in English and Spanish and provide an information fact sheet on sexual harassment to each employee at the time of hire (which can be included in an employee handbook). To receive a copy of the posters and fact sheets, please contact us. Employers must post their sexual harassment policy prominently in all work locations.